Ester d/o Zacharia v. R., Crim. App. 72-DDM-71, 16/5/72, Mnzavas, J.

 

Ester d/o Zacharia v. R., Crim. App. 72-DDM-71, 16/5/72, Mnzavas, J.

The appellant was convicted of burglary and theft c/ss 294, Penal Code and sentenced to concurrent terms of 2 years and 6 months respectively. On 26/6/71 she was found in possession of a radio stolen in the course of a burglary which occurred some 3¹/₂ months previously, on 8/3/71. The radio was found under appellant’s bed and her various explanations as to how it was obtained proved bed and her various explanation as to how it was obtained proved false.  

            Held: (1) “As I mentioned when admitting this appeal for hearing the learned resident Magistrate failed to discuss the doctrine of recent possession in his judgment. Under the doctrine of recent possession if a person is found in possession of recently stolen property he is, in he absence of a reasonable deemed to be either the thief or a guilty receiver. The question the court had to decided was whether the period between the stealing of the radio and the finding or it in the possession of the accused was so recent as to entitle the court to come to the conclusion that the accused was the thief and consequently also the burgler. In the case of Musa Alli Mahambi v. R., (1968) H.C.D. n. 157, which is almost on all fours with the present case, the accused was found guilty of stealing a radio when the same was found in his possession a month after I had been stolen. It was held that the interval was short enough to support the conclusion that the accused was the thief. In Gaspar s/o Jovin v. R., (1968) H.C.D. n. 483 an accused was found

in possession of a watch four months after it had been stolen. The period was held to be too long o be considered “recent” in order to raise the presumption that the accused was the thief. In the present case the radio was stolen from complainant’s room (after the room was broken into) on 8/3/71; about four months later (26/6/71) the radio was found in appellant’s house. In the light of the above decisions by this court I am inclined to say that the period was too long to warrant ….The presumption that the appellant was the thief as well as the burgler. A better inference would have been that of receiving stolen property knowing it to have been stolen. The convictions for burglary and stealing are accordingly set aside and he appellant is found guilty of receiving the radio knowing it t have been stolen” (2) Nothing in the evidence suggests that he appellant knew that the radio was stolen after a burglary. But, as was held in  Said Meke v. R.,  (1967) H.C.D. n. 37, under the Minimum Sentences Act an accused may be given the scheduled sentence for receiving stolen goods feloniously taken; he need not have known that they were taken in the course of an offence set out in Part I of the schedule to the act. (Citing also: R. v. Mohamed Naweka, (1964) E.A. 353 and Shah Ali v. R. (1968) H.C.D. n. 474. Declining to follow Samson s/o Karuwana v. R., (1967) H.C.D. n. 317). “I with respect agree with the learned state attorney that the receiving  of the radio by the appellant after it had been stolen in the commission of a burglary is an offence punishable under the Minimum Sentences Act notwithstanding the fact that the appellant did not know that a burglary had been committed before it was stolen. The appellant was under section 6A of the old Minimum Sentences Act liable to suffer 2 years imprisonment. The sentences of two years and six months imprisonment imposed by the trial court are hereby set aside. The appellant will suffer 2 years imprisonment.”